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May 20, 2007

Continued pitch for cert on an important Blakely issue

As detailed in this post, I am part of a team seeking cert in Faulks v. US, a case from the Fourth Circuit concerning the procedures for revoking supervised release. Our initial petition is here, and earlier this month the government filed its brief in opposition (BIO). A few days ago, we filed our reply to the government's BIO. These latest filings can be accessed here:

Though I am partial, I am genuinely convinced that the issues we have raised in Faulks need the Supreme Court's attention ASAP. If the Justices in the Blakely five (or the Cunningham six) are genuinely committed to its articulated Sixth Amendment doctrines and principles, the judge-centered procedures employed in federal supervised release revocation proceedings ought to be cause for significant constitutional concern (especially in a case with extreme facts like Faulks).

As has been well documented in the SCOTUSblog stats, SCOTUS needs to grant cert in a bunch of new cases to fill its fall argument calender. And the Court has not taken up any new Blakely issues in a while (although, of course, Claiborne and Rita might address Sixth Amendment issues). I am hopeful we have a real shot with Faulks.

Comments

Nice post, Doug. I think that the structural and reliability problems in Faulks are far more serious than those in Apprendi and Blakely. In Faulks's case, the judge was finding facts regarding a crime completely unrelated to Faulks crime of conviction nearly a decade prior. This seems to me far more extreme bypassing of the jury function than finding additional aggravating facts relating to the crime of conviction (as in Apprendi and Blakely). If ever a Sixth Amendment violation were more clear, this is it. I don't think that a holding for Faulks should be 5-4 or 6-3. This is a case where all the Justices ought to be extremely concerned.

Posted by: Aaron | May 21, 2007 1:53:02 AM

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